Date: 19980219
Docket: IMM-207-97
BETWEEN:
SEYYED AMIR RAZAVI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McGILLIS, J.
INTRODUCTION
[1] The applicant, as an unsuccessful refugee claimant, was deemed by virtue of subsection 11.4(2) of the Immigration Regulations 1978, SOR/78-172 ("Regulations") to have made an application for landing as a member of the Post Determination Refugee Claimants Class in Canada ("PDRCC"). He failed to make written submissions in support of that application within the time period prescribed in the Regulations. Approximately one and a half months following the expiry of the legislative time limit, a lawyer requested an extension of time to permit the applicant to make submissions. A further request was made another month and a half later. No response was ever made to the requests for an extension of time. A Post Claim Determination Officer ("PCDO") determined that the applicant was not a member of the PDRCC class, within the meaning of subsection 2(1) of the Regulations. The applicant has challenged that decision by way of judicial review on the basis that the failure of the PCDO to consider the request for an extension of time breached the applicant's right to fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms ("Charter").
FACTS
[2] The applicant is a citizen of Iran who came to Canada in November 1994. He has a sister and brother who were determined to be Convention refugees in Canada in 1989. He has six other relatives who have been granted Convention refugee status in other countries.
[3] On March 16, 1996, the Immigration and Refugee Board ("Board") rejected his refugee claim on the basis that he lacked credibility.
[4] By virtue of subsection 11.4(2) of the Regulations, the applicant was deemed to have submitted an application for landing as a member of the PDRCC class on the date that the Board made its determination.
[5] On March 27, 1996, the Board`s decision and reasons were forwarded to the applicant, together with a PDRCC submissions form. The applicant was advised that his submissions had to be made within fifteen days of receipt of those materials or from the date of denial of an application for leave and for judicial review. The advice concerning the time limits for filing submissions in support of the PDRCC application reflected the time periods outlined in subsections 11.4(3), (4) and (5) of the Regulations. Neither the Immigration Act, R.S.C. 1985, c. I-2 as amended ("Act") nor the Regulations permit the time periods in subsections 11.4(3), (4) and (5) of the Regulations to be extended.
[6] On April 16, 1996, the applicant instituted an application for leave and for judicial review of the Board's decision. On August 19, 1996, that application was dismissed by the Court due to the applicant's failure to file his record. The applicant did not file written submissions in support of his application for landing as a member of the PDRCC class, within the time periods specified in subsections 11.4(3), (4) and (5) of the Regulations.
[7] By letter dated October 28, 1996, a lawyer wrote to the respondent indicating that he had "been approached" by the applicant who intended to retain him to make submissions in relation to the PDRCC application for landing. As a result, the lawyer requested an extension of time in order to make submissions on the application.
[8] By letter dated December 18, 1996, the lawyer again wrote to the respondent to request an extension of time to make submissions on the PDRCC application for landing. The lawyer further indicated that he had been retained by the applicant.
[9] By letter dated December 19, 1996, a PCDO advised the applicant that his deemed application for landing as a member of the PDRCC class had been rejected, and provided him with a copy of the reasons in support of that decision.
ISSUE
[10] The question to be determined on this application for judicial review is whether the failure of a PCDO to consider a request for an extension of the legislative time limit specified in subsections 11.4(3), (4) and (5) of the Regulations constitutes a breach of the applicant's right to fundamental justice under section 7 of the Charter.
ANALYSIS
[11] In order to determine whether the applicant's right to fundamental justice under section 7 of the Charter was breached by virtue of the PCDO's refusal to consider the request for an extension of the legislative time limit, the nature of an application for deemed landing as a member of the PDRCC class must be considered in the context of the overall legislative scheme pertaining to a refugee claimant.
[12] In Sinnappu v. Canada (Minister of Citizenship and Immigration) 1997 2 F.C. 791 (T.D.), I determined that the substantive content and the procedural aspects of the PDRCC class regulatory scheme accorded with the requirements of fundamental justice and did not violate section 7 of the Charter. As part of my analysis on that question, I reviewed in detail, at pages 804 to 817, the legislative scheme applicable to a person who was unsuccessful in making a claim to Convention refugee status. Among other things, I noted that an unsuccessful refugee claimant has no right to remain in Canada, and is subject to deportation under the terms of a removal order upon receiving notification that the Board has rejected his claim. However, as a matter of policy, the Minister does not execute a removal order for an unsuccessful refugee claimant pending a determination of an application for landing as a member of the PDRCC class. An unsuccessful refugee claimant may make written submissions on a PDRCC class application within the mandatory time periods specified in subsections 11.4 (3), (4) and (5) of the Regulations. However, he is not required to do so; a PCDO will assess the crucial question of risk by conducting a full review of the deemed application for landing, including relevant documentation concerning country conditions, whether or not the unsuccessful refugee claimant has made written submissions.
[13] In Sinnappu v. Canada (Minister of Citizenship and Immigration), supra, I also summarized in the following terms, at page 807, the criteria which must be met in order for an unsuccessful refugee claimant to be granted landing as a member of the PDRRC class:
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In order to qualify as a member of the PDRCC class, an unsuccessful refugee claimant must meet the eligibility criteria outlined in subsection 2(1) [as am. by SOR/93-44, s. 1] of the Immigration Regulations, 1978, SOR/78-172 (Regulations). All unsuccessful refugee claimants are automatically deemed to apply for landing in Canada as members of the PDRCC class. However, the criteria in subsection 2(1) of the Regulations specifically exclude from that class a claimant who has withdrawn or abandoned his claim, a claimant who has been determined not to have a credible basis for his claim under subsection 69.1(9.1) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60] of the Act, or a claimant who left Canada after the Board's decision. A claimant who has previously been refused landing by an immigration officer under section 11.4 [as enacted by SOR/93-44, s. 10; SOR/93-412, s. 6] of the Regulations is also excluded from the class. In the event that a person is not excluded from the PDRCC class on the basis of non-compliance with any of the previously described threshold requirements, he must satisfy the risk-based criteria in subsection 2(1) of the Regulations. In particular, he must establish that his removal to the country in question would subject him "to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country." Furthermore, it must be a risk to life, or a risk of extreme sanctions or inhumane treatment. |
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[Footnotes not reproduced] |
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[14] At pages 829 to 830 of Sinnappu v. Canada (Minister of Citizenship and Immigration), supra, I summarized the extensive safeguards and various avenues of recourse available to a refugee claimant in the following terms:
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At the outset, such a claimant has a right to a hearing before a quasi-judicial body and a right to apply to this Court for leave and for judicial review of a negative Board decision. Furthermore, under the post-claim review scheme, an unsuccessful refugee claimant is automatically deemed to apply for landing in Canada as a member of the PDRCC class. He is entitled to make submissions in writing in support of that application in order to establish that he meets the criteria for risk outlined in the Regulations. In the event that the conditions in his country of origin change, he may make additional submissions in writing at any time prior to the making of the decision. He may institute legal proceedings to challenge a negative decision. Furthermore, as a matter of stated ministerial policy, he will not be deported from the country until a negative decision has been made on the application for membership in the PDRCC class. The unsuccessful refugee claimant may also, at any time, make an application under subsection 114(2) of the Act, on the basis of risk or any other factors, to facilitate his landing in Canada on humanitarian or compassionate grounds. Indeed, he may make more than one application for admission on humanitarian or compassionate grounds. In the event that he receives a negative decision on any such application, he may institute legal proceedings to challenge it. An application for membership in the PDRCC class and an application for admission on humanitarian or compassionate grounds are separate, complementary processes. As a result, the legislative scheme provides two separate mechanisms for reviewing evidence of changes in country conditions and for assessing any attendant risks to the unsuccessful refugee claimant. |
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[15] A review of the legislative scheme pertaining to a refugee claimant confirms that both quasi-judicial and administrative relief is available: the Board conducts a refugee hearing in the exercise of its quasi-judicial functions, while an immigration officer makes a purely administrative decision on an unsuccessful refugee claimant`s deemed application for landing as a member of the PDRCC class or on an application for admission on humanitarian and compassionate grounds. In other words, the decisions which are administrative in nature are only made after an unsuccessful refugee claimant has had a full, quasi-judicial hearing before the Board.
[16] The question of whether a tribunal exercising quasi-judicial powers could grant an extension of a time limit prescribed in the Regulations was addressed in Bains v. Minister of Employment & Immigration; James v. Minister of Employment & Immigration (1989), 8 Imm. L.R. (2d) 165 (F.C.A.). In that case, the former Immigration Appeal Board had refused to extend the time under the Regulations to permit the applicants to file applications for redetermination of their claims to refugee status. At the outset of his reasons, Hugessen, J.A., writing for the Court, noted that the Appeal Board was correct in determining that it had no jurisdiction to extend a legislative time limit. He also noted that the Appeal Board's decision was in accordance with the Court's jurisprudence. However, at page 168, he adopted the appellants' argument that "... a rigid and inflexible time limit within which to apply for redetermination, with no possibility of extension no matter what the circumstances, is not in accordance with the principles of fundamental justice and may lead to a deprivation of life, liberty or security of the person, contrary to section 7 of the Charter." In explaining the rationale for his conclusion on that point, Hugessen, J.A. stated as follows at page 169:
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The difficulties with the argument advanced by counsel for the Minister is that the Board, being of the view that it had no jurisdiction to do so, never examined the facts of either case. It may well be that, in the end, the Board will agree with the submission of counsel for the Minister and find that the facts reveal no breach of the rules of fundamental justice, but the duty of examining and answering that question lies, at least in the first instance, on the Board and not on this Court. The Board is a court of record, with "sole and exclusive jurisdiction" over a matter such as we have here, namely, an application for redetermination of a refugee claim. Its powers and its jurisdiction must be read in the light of the Charter. Hence it cannot simply refuse to entertain an application of the type here in question; rather it must look at the particular circumstances of each case to determine whether the applicant stands to be deprived of a Charter-protected right if not permitted to apply for redetermination and, if so, whether fundamental justice requires that he be granted such permission. [Footnotes not produced] |
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[17] In my opinion, the principle enunciated by the Federal Court of Appeal in Bains v. Minister of Employment & Immigration; James v. Minister of Employment & Immigration, supra, is not applicable in the circumstances of the case at bar for two reasons. First, the Appeal Board was a court of record exercising quasi-judicial functions on the substantive question of the redetermination of the refugee claim. For that reason, its powers and jurisdiction had to "... be read in the light of the Charter". Second, given its refusal to consider the application for an extension of time, the facts of the case were never examined by the Appeal Board. Conversely, in the case at bar, the PCDO made a purely administrative decision. Furthermore, he considered the substance of the applicant's deemed application for landing as a member of the PDRCC class, even though he did not consider the request for an extension of time.
[18] In the circumstances, I have concluded that the PCDO had no jurisdiction to consider a request for an extension of the time limits in subsection 11.4(3), (4) and (5) of the Regulations, in the absence of an express legislative provision permitting him to do so. Furthermore, I am of the opinion that the dictates of fundamental justice enshrined in section 7 of the Charter did not require the PCDO to entertain the applicant's request to extend the time limit prescribed in the Regulations prior to making his administrative decision on the deemed application. [(See also Ponnampalam v. Canada (Minister of Citizenship and Immigration) (1996), 117 F.T.R. 294 (T.D.)].
[19] I wish to emphasize, as I did in Sinnappu v. Canada (Minister of Citizenship and Immigration, supra, at pages 826 to 827, that the applicant, who had no right to remain in Canada, "...had an obligation to pursue actively and aggressively all legislative avenues available...in an attempt to obtain status in this country." Not only did the applicant not pursue his application for leave and his deemed application for landing as a member of the PDRCC class in a timely manner, but he has also failed to launch an application for landing on humanitarian and compassionate grounds. Since the applicant has not exhausted his legislative avenues of recourse by making an application for humanitarian and compassionate relief, which may also be based on risk, he has failed to establish that any of his rights under section 7 of the Charter have been breached.
DECISION
[20] The application for judicial review is dismissed. I hereby certify the following serious question of general importance:
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Does the failure of a Post Claim Determination Officer to consider a request to extend the time limits prescribed in subsections 11.4(3), (4) and (5) of the Immigration Regulations, 1978, prior to making a decision on a deemed application for landing as a member of the Post Determination Refugee Claimants in Canada class, constitute a breach of an unsuccessful refugee claimant's rights under section 7 of the Charter? |
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"D. McGillis"
Judge
Toronto, Ontario
February 19, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-207-97
| STYLE OF CAUSE: SEYYED AMIR RAZAVI |
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: FEBRUARY 18, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: McGILLIS, J.
DATED: FEBRUARY 19, 1998
APPEARANCES:
Ms. Mary C. Tatham
For the Applicant
Mr. Brian Frimeth
For the Respondent
SOLICITORS OF RECORD:
Tatham & McChesney
200-166 Pearl Street
Toronto, Ontario
M5H 1L3
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
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THE MINISTER OF CITIZENSHIP |
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